Justice Watch | An Alliance for Justice blog tracking the latest developments in the fight for a fair America

We’ve Been Here Before

After a Senate hearing where Brett Kavanaugh responded to credible accusations of sexual assault by misleading senators about his past, shouting partisan conspiracy theories about Senate Democrats and the Clintons, and demonstrating a temperament completely unbefitting a Supreme Court Justice, Republicans have put a short hold on his nomination. Dr. Christine Blasey Ford’s testimony – a persuasive and heartbreaking account of her assault by Kavanaugh when she was fifteen years old – convinced at least one GOP Senator that the Senate Judiciary Committee had to “hit[] the pause button” and allow an FBI investigation.

While a supplemental FBI background check investigation is the bare minimum due diligence that should be provided to Dr. Blasey Ford and other survivors, it’s important to remember that the country has been here before. Twenty-seven years ago, the FBI launched an investigation into Anita Hill’s credible allegations of sexual harassment against Clarence Thomas. The investigation was wanting in almost every conceivable way, from an insufficient witness list to rank partisanship corrupting the process.

Thankfully, the country has come a long way since 1991 in terms of how we treat survivors of sexual violence. Women across America are sharing their stories – in texts, quiet conversations, and public displays throughout the country, processing their own trauma and personal experiences with sexual violence.

And yet, on Friday, the Trump Administration’s instructions to the FBI proved that we are about to repeat the mistakes of the past. The similarities between Trump’s apparent sham investigation of Brett Kavanaugh and the investigation of Clarence Thomas are striking.

FAILURE TO PROPERLY INVESTIGATE CORROBORATING INFORMATION

During the Thomas hearing, the FBI failed to properly investigate and assess corroborating evidence to support Anita Hill’s allegations. Notably, Professor Hill had shared her experience with others before Thomas’s nomination to the high court. Yet the FBI failed to pursue witnesses who had corroborating information. For example, it does not appear that the FBI interviewed witnesses who ultimately appeared before the Senate Judiciary Committee on Hill’s behalf. These individuals include Ellen Wells, a friend of Professor Hill’s; John W. Carr, a former boyfriend; and Joel Paul, a colleague, who all testified that Hill had spoken to them about the harassment.

Likewise, the Trump Administration has deliberately limited the FBI investigation to weed out a number of individuals who could corroborate the details of Dr. Blasey Ford’s testimony. In fact, with regard to Dr. Blasey Ford’s experience, the FBI has reportedly been limited to interviewing three witnesses who may recall information from being physically present at the gathering in question. The White House counsel’s office has reportedly given the FBI a limited list of witnesses they are allowed to interview. Accordingly, the FBI would not interview some potential witnesses to the gathering in question, nor would it interview Kavanaugh’s high school classmates who could contradict Kavanaugh’s misleading testimony about his drinking and behavior in school. Nor could it interview individuals who have given sworn affidavits corroborating Dr. Blasey Ford, including Russell Ford, Rebecca White, Adele Gildo-Mazzon, and Keith Koegler. Other individuals from Kavanaugh’s calendars and testimony who would be relevant include Tim Gaudette (who hosted a party on Kavanaugh’s calendar), Thomas Kane, Bernie McCarthy, and Chris Garrett. And since Dr. Blasey Ford voluntarily underwent a polygraph examination, the FBI could also interview the polygraph examiner, Jerry Hanafin.

The current FBI background check investigation has also been limited to a single week at most, with some reports that the investigation would be over as soon as October 1. This is not nearly enough time to conduct a full probe.

As Senator Mazie Hirono stated, any investigation that limits whom the FBI can interview and which leads agents can follow would be a “farce.” When one former FBI agent was asked about the apparent limits on the investigation, he said “it would be unprofessional, it would be grossly incomplete, and it would be unfair to the American public.”

FAILURE TO ELICIT MORE DETAILS FROM THE SURVIVORS

Sadly, back in 1991, the FBI failed to ask Professor Hill all relevant and appropriate questions and to follow up if they needed to know more. When Senator Patrick Leahy asked Professor Hill whether an FBI agent said they would come back and talk to her again, Hill responded, “Yes, he almost assured me that he would come back . . . [i]n fact, they did not come back. I did receive a phone call the next day to verify two names of persons that I had given them, but they did not return for more information . . . I have not spoken with the FBI since then.”

To date, it does not appear that the FBI has interviewed Dr. Blasey Ford, who has indicated she’s happy to be helpful in providing additional information.

FAILURE TO INVESTIGATE OTHER CREDIBLE CLAIMS OF SEXUAL MISCONDUCT

During the Thomas hearing, the investigation into other credible claims of sexual misconduct was severely lacking. One example is the treatment of Angela Wright, another woman who spoke out about Clarence Thomas sexually harassing her. As recounted in Jane Mayer and Jill Abramson’s award-winning book on the campaign to discredit Anita Hill, Strange Justice, Angela Wright’s interview with the FBI was barely more than cursory:

Neither agent, according to Wright and her attorney, had a copy of her deposition, and neither asked anything relating to the hearings. Instead, they proceeded to perform what sounded to Wright and her lawyer like a routine background check on Thomas, asking her, for instance, whether she had ever known him to abuse alcohol or drugs and whether she would trust him with top-secret documents. When she answered affirmatively to the latter question, her lawyer interjected, “But do you trust him?” and she answered, “No.” The one-and-a-half hour visit, as she recalled it, was more than a little strange: “They just sat there and scratched their heads in wonder.”

Sukari Hardnett, another woman who was willing to speak about Thomas’s sexual harassment, was also ignored. As Thomas himself admitted in his hearing, “[W]hen when you have a person who is engaged in grotesque conduct or harassing conduct, you will find more than one person . . . You will not find generally just one isolated instance, and I think that would be the trigger to look for more instances of them.” And yet, the pattern of Thomas’s behavior was ignored by the Senate Judiciary Committee and the FBI.

Now, the FBI is set to give short shrift to the other credible allegations against Kavanaugh. The FBI reportedly will only assess Debbie Ramirez’s allegations of sexual misconduct by Kavanaugh with a single interview with her, and no other witnesses. It has also reportedly declined to conduct any investigation into the allegations by Julie Swetnick. This is unacceptable. Both allegations have potential individuals who could further corroborate the allegations and shed light on Kavanaugh’s character and past conduct.

In fact, the New Yorker story about Debbie Ramirez’s allegations revealed multiple potential individuals to interview, including two Yale classmates who were in the room during the event, different classmates who could speak to contemporaneously hearing about the event (Richard Oh and an anonymous Yale classmate), and multiple witnesses to Kavanaugh’s binge drinking. They could all be interviewed in a real investigation. Dr. Liz Swisher and Lynne Brookes, in particular, have already felt compelled to speak publicly to counter Kavanaugh’s recent account of his past behavior. Kavanaugh’s former roommates, James Roche and Kit Winter, should also be interviewed.

PARTISAN INVESTIGATION

During the Thomas hearings, FBI agents acted almost as an arm of the Republican Party. The FBI agents who interviewed Professor Hill were reportedly instructed to listen to Anita Hill’s testimony and take note of any inconsistencies between her statements in the hearing and her previous statements to the FBI. The FBI agents then wrote memos documenting these inconsistencies. No such analysis of Thomas’s inconsistent statements was ordered. These memos were used later, during the hearing, by Senator Alan Simpson to highlight alleged contradictions between the testimony Professor Hill gave the Committee and information that she gave to the FBI.

As recounted in Strange Justice:

This use of the FBI was highly unusual. A veteran of the FBI and the head of one of its field offices later said, “It is extraordinary, maybe unprecedented, to have a statement from the agents.” But as Bill Baker, the FBI’s top spokesman at the time, later admitted, the agency was under mounting pressure. Hill’s Senate testimony had included lurid and damaging details of Thomas’s behavior – such as his comment about the pubic hair on the Coke can – which the agents had failed to elicit from her in their interview. They could either admit that they had done an inadequate job or suggest that Hill fabricated the new details expressly for the hearings.

Now, as previously mentioned, severalreports have come out that the White House has ordered the FBI to limit the scope of the investigation. This interference in what should be a thorough and complete investigation of three separate allegations of sexual assault is troubling. For this investigation to not be a sham that runs the risk of permanently undermining confidence in the Supreme Court, the White House must not instruct the FBI to act in a partisan fashion, and instead must encourage a genuine background check investigation.

Senate Republicans are hiding behind a “he said, she said” defense that there is not enough evidence to know whether Brett Kavanaugh lied. But we need to believe survivors, who come forward at great personal risk. Moreover, as one Senator noted, this situation is more like “he said, they said.” It is clear that the Trump Administration’s efforts to undermine a thorough background check investigation of the claims against Kavanaugh are meant to protect these Republicans from a truth that they are unwilling to face: the claims of Dr. Ford and other survivors are credible. This FBI investigation presents a limited opportunity to bring even more evidence to light, and the Senate cannot allow the Trump Administration to drain it of its worth. In this day and age, sexual violence cannot be swept under the rug. We have been here before: let’s not make the same mistakes.